legal terms

An important tool used in pretrial discovery where one party questions the other party or a witness in the case. Often conducted in an attorney's office, a deposition requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on (impeach) a witness's contradictory testimony or to refresh the memory of a suddenly forgetful witness. If a deposed witness is unavailable when the trial takes place -- for example, if he or she has died -- the deposition may be read to the jury in place of live testimony.

derivative work

For copyright purposes, a new work based upon an original work to which enough original creative work has been added so that the new work represents an original work of authorship. Examples of derivative works include a translation of a book into another language, a jazz version of a popular tune and a movie based on a play.

descriptive mark

A trademark or service mark that describes the characteristics of the product or service to which it's attached. For instance, "Jiffy Lube" describes its purportedly fast service. Marks judged to be descriptive are initially considered legally weak and don't get much protection from the courts. If federal registration is sought, they are usually placed on the Supplemental rather than Principal Trademark Register, which also doesn't provide much protection. After a descriptive mark has been in use for five years, however, it can be moved to the Principal Register on the theory that it has by that time become well known through public exposure.

desertion

The voluntary abandonment of one spouse by the other, without the abandoned spouse's consent. Commonly, desertion occurs when a spouse leaves the marital home for a specified length of time. Desertion is a grounds for divorce in states with fault divorce.

design patent

A patent issued on a new design, used for purely aesthetic reasons, that does not affect the functioning of the underlying device. Design patents last for 14 years from the date the patent is issued. For example, the unique flaring fender designs appearing on new model trucks to make them look more sporty are non-functional industrial designs that may qualify for design patents.

detain

See imprison.

devise

An old legal term that is generally used to refer to real estate left to someone under the terms of a will, or to the act of leaving such real estate. In some states, "devise" now applies to any kind of property left by will, making it identical to the term bequest. Compare legacy.

devisee

A person or entity who inherits real estate under the terms of a will.

dicta

Plural of dictum.

dictum

A remark, statement or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts are not required to accept it. For example, if a defendant ran a stop sign and caused a collision, the judge's comments about the mechanical reliability of the particular make of the defendant's car would not be necessary to reach a decision in the case, and would be considered dictum. In future cases, lower court judges are free to ignore the comments when reaching their decisions. Dictum is an abbreviation of the Latin phrase "obiter dictum," which means a remark by the way, or an aside.

digital signature

See electronic signature.

dilution

A situation in which a famous trademark or service mark is used in a context in which the mark's reputation for quality is tarnished or its distinction is blurred. In this case, trademark infringement exists even though there is no likelihood of customer confusion, which is usually required in cases of trademark infringement. For example, the use of the word Candyland for a pornographic site on the Internet was ruled to dilute the reputation of the Candyland mark for the well-known children's game, even though the traditional basis for trademark infringement (probable customer confusion) wasn't an issue.

direct examination

At trial, the initial questioning of a party or witness by the side that called him or her to testify. The major purpose of direct examination is to explain your version of events to the judge or jury and to undercut your adversary's version. Good direct examination seeks to prove all facts necessary to satisfy the plaintiff's legal claims or causes of action -- for example, that the defendant breached a valid contract and, as a result, the plaintiff suffered a loss.

directed verdict

A ruling by a judge, typically made after the plaintiff has presented all of her evidence but before the defendant puts on his case, that awards judgment to the defendant. A directed verdict is usually made because the judge concludes the plaintiff has failed to offer the minimum amount of evidence to prove her case even if there were no opposition. In other words, the judge is saying that, as a matter of law, no reasonable jury could decide in the plaintiff's favor. In a criminal case, a directed verdict is a judgement of acquittal for the defendant.